State v. DeJong ( 2014 )

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knew that Juranek had “shared” some information with the
transporting officer. Juranek responded that he “told it to him
14 times.” The detective responded, “Ok. Do you want to tell
it to me?”
The detective testified that he was attempting to build a
rapport with Juranek and did not intend to elicit an incriminat-
ing response from Juranek by asking this question. I reject the
majority’s conclusion that the detective “should have expected”
that Juranek would confess again. In my view, the detective’s
actions were not inconsistent with rapport building. The detec-
tive attempted to shake Juranek’s hand. He inquired of Juranek
whether Juranek wanted to tell him what he told the other
officer—at its root, a question requiring only a “yes” or “no”
answer.2 While I agree that ultimately the detective wanted to
talk about the incriminating statements Juranek had made to
Andersen and later in the cruiser, I do not agree that a “rea-
sonable and disinterested person” would find that the detec-
tive was, in this moment, attempting to elicit an incriminating
response from Juranek.
For this reason, I would conclude that Juranek’s statement
need not be suppressed.
2
See, e.g., State v. Eli, 126 Haw. 510, 273 P.3d 1196 (2012); State v. Riggs,
987 P.2d 1281 (Utah App. 1999), abrogated on other grounds, State v.
Levin, 144 P.3d 1096 (Utah 2006).
State of Nebraska, appellee, v.
Susan M. De Jong, appellant.
___ N.W.2d ___
Filed April 11, 2014. No. S-12-432.
1. Motions to Suppress: Confessions: Constitutional Law: Miranda Rights:
Appeal and Error. In reviewing a motion to suppress a statement based on its
claimed involuntariness, including claims that law enforcement procured it by
violating the safeguards established by the U.S. Supreme Court in Miranda v.
Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), an appellate
court applies a two-part standard of review. Regarding historical facts, an appel-
late court reviews the trial court’s findings for clear error. Whether those facts
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Cite as 287 Neb. 864meet constitutional standards, however, is a question of law, which an appellate
court reviews independently of the trial court’s determination.
2. Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply, the
admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial
discretion is involved only when the rules make discretion a factor in determin-
ing admissibility.
3. Evidence. Determining the relevancy of evidence is a matter entrusted to the
discretion of the trial court.
4. Rules of Evidence: Other Acts: Appeal and Error. It is within the discretion
of the trial court to determine relevancy and admissibility of evidence of other
wrongs or acts under Neb. Evid. R. 403 and 404(2), Neb. Rev. Stat. §§ 27-403(Reissue 2008) and 27-404(2) (Cum. Supp. 2012), and the trial court’s decision
will not be reversed on appeal absent an abuse of discretion.
5. Miranda Rights. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.
Ed. 2d 694 (1966), adopted a set of prophylactic measures to protect suspects
from modern custodial interrogation techniques. The safeguards come into play
whenever a person in custody is subjected to either express questioning or its
functional equivalent.
6. Self-Incrimination: Right to Counsel. If the suspect indicates that he or she
wishes to remain silent or that he or she wants an attorney, the interrogation
must cease.
7. Right to Counsel. When a suspect invokes his or her right to counsel, the suspect
must not be subject to further interrogation by the authorities until counsel has
been made available to him or her, unless the accused initiates further communi-
cation, exchanges, or conversations with the police.
8. Confessions. Voluntary confessions are not merely a proper element in law
enforcement, they are an unmitigated good, essential to society’s compelling
interest in finding, convicting, and punishing those who violate the law.
9. Constitutional Law: Confessions. Volunteered statements of any kind are not
barred by the Fifth Amendment, and their admissibility is not affected by the
holding in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
10. Criminal Law: Self-Incrimination: Appeal and Error. In considering whether
a suspect has clearly invoked the right to remain silent, an appellate court
reviews not only the words of the criminal defendant, but also the context of
the invocation.
11. Self-Incrimination: Police Officers and Sheriffs. Relevant circumstances in
determining whether a suspect has clearly invoked the right to remain silent
include the words spoken by the defendant and the interrogating officer, the offi-
cer’s response to the suspect’s words, the speech patterns of the suspect, the con-
tent of the interrogation, the demeanor and tone of the interrogating officer, the
suspect’s behavior during questioning, the point at which the suspect allegedly
invoked the right to remain silent, and who was present during the interrogation.
A court might also consider the questions that drew the statement, as well as the
officer’s response to the statement.
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12. Trial: Evidence: Confessions: Appeal and Error. The admission of an improp-
erly obtained statement is a trial error, and so its erroneous admission is subject
to harmless error analysis.
13. Trial: Evidence: Appeal and Error. To conduct harmless error review, an appel-
late court looks to the entire record and views the erroneously admitted evidence
relative to the rest of the untainted, relevant evidence of guilt.
14. Verdicts: Appeal and Error. Harmless error review looks to the basis on which
the trier of fact actually rested its verdict; the inquiry is not whether in a trial
that occurred without the error a guilty verdict would surely have been rendered,
but, rather, whether the actual guilty verdict rendered in the questioned trial was
surely unattributable to the error.
15. Trial: Evidence: Appeal and Error. Erroneous admission of evidence is harm-
less error and does not require reversal if the evidence is cumulative and other
relevant evidence, properly admitted, supports the finding by the trier of fact.
16. Constitutional Law: Confessions: Waiver. The fact that a defendant has shared
a secret in an inadmissible statement does not preclude the defendant from later
waiving his or her constitutional rights after the conditions that induced the origi-
nal statement have been removed.
17. Confessions: Police Officers and Sheriffs: Evidence. For a subsequent confes-
sion made after an inadmissible confession, a court focuses on the voluntariness
of any subsequent statement. The court should evaluate the entire course of police
conduct and the surrounding circumstances, including whether or not the condi-
tions that made the first statement inadmissible had been removed.
18. Miranda Rights: Confessions: Waiver. A subsequent confession made after an
inadmissible confession can be admissible if curative measures are undertaken to
ensure that a reasonable person in the suspect’s situation would understand the
import and effect of the warning and waiver under Miranda v. Arizona, 384 U.S.
436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Appeal from the District Court for Jefferson County: Paul
W. Korslund, Judge. Affirmed.
James R. Mowbray and Jeffery Pickens, of Nebraska
Commission on Public Advocacy, for appellant.
Jon Bruning, Attorney General, and James D. Smith for
appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
McCormack, J.
NATURE OF CASE
Susan M. DeJong was convicted of first degree murder and
use of a deadly weapon to commit a felony for the death of
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Cite as 287 Neb. 864her husband, Thomas DeJong (Tom). Although Susan raises
several issues, the primary issue presented is whether Susan’s
statements made after 4:18 a.m. on March 12, 2011, while in
police custody, are admissible as volunteered statements. We
conclude that the statements made after 4:18 a.m. by Susan
were voluntary and were not required to be suppressed under
U.S. Supreme Court precedent.
BACKGROUND
On March 11, 2011, Susan called the 911 emergency dis-
patch service at approximately 4 p.m. Susan told the operator
that her husband, Tom, was not breathing and was cold to the
touch. Susan stated that Tom had gone to South Dakota to be
with his “whore” and came home “all . . . beat up.” The opera-
tor had Susan perform cardiopulmonary resuscitation on Tom
until the emergency units arrived.
When emergency personnel arrived at the DeJong home,
Susan was hysterical and she repeatedly stated that the “whore”
had done this to Tom. Emergency personnel immediately began
resuscitation efforts. Tom was not breathing, and there was no
heartbeat. Dried blood was around his nostrils and the top of
his mouth. His hands, arms, feet, legs, torso, and head were
visibly scratched, cut, and deeply bruised. Emergency person-
nel were able to help Tom regain a heartbeat.
Tom was taken to the Jefferson Community Health Center
and was later transported by ambulance to Bryan Health,
west campus trauma center, in Lincoln, Nebraska (Bryan hos-
pital). Laboratory reports and blood tests indicated a threat
of imminent heart and renal failure. A chest x ray indicated
multiple rib-sided fractures and a partially collapsed lung. A
CAT scan revealed the following injuries: a swollen brain;
a tremendous amount of fractures within the chest cavity,
including the spine, the ribs, and the scapula; a comminuted
fracture of the nose; and a possible fracture of the hyoid bone
in the neck.
The treating physicians concluded that Tom would not be
able to recover from the injuries. The physicians asked Susan
for permission to remove Tom from life support, and she
granted the request. Tom passed away shortly thereafter.
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Susan’s Statements
at Hospitals
At the Jefferson Community Health Center, Rebecca
McClure, a nurse, stayed with Susan while waiting for Tom’s
prognosis. The two of them waited in a small quiet room
located outside of the emergency room.
Susan told McClure that she had not seen Tom since
Wednesday and that he came home that Friday morning. She
stated that Tom was “stumbling around in the house” and that
the noise woke her up. Tom had been beaten, was cold, and
quickly became unresponsive. Susan told McClure that Tom
had spent the past days visiting the “whore” in South Dakota.
According to Susan, the “whore” would beat Tom with tie-
down straps from Tom’s semi-truck. Susan also stated that
the “whore” and Tom were trying to kill her by giving her a
sexually transmitted disease (STD). McClure personally drove
Susan home after Tom was transported to Lincoln, and Susan
then drove herself to Bryan hospital in Lincoln.
Investigator Wendy Ground from the Lincoln Police
Department arrived at Bryan hospital at approximately 10:20
p.m. Ground questioned Susan about Tom’s injuries. Susan told
Ground that Tom had returned home that morning. He looked
pale, and he had stated that he did not feel well. Susan told
Ground that Tom was apologetic and that he had told her he
had made a mistake. According to Susan, Tom said his alleged
mistress did not love him and that the mistress went “psycho”
and wanted to kill him. Susan told Ground that the mistress
had previously tried to kill Susan by cutting her vehicle’s
brake lines.
Ground asked Susan about Tom’s medical history. Susan
stated that Tom had been feeling weak and clumsy for the
past 21⁄2 years. Susan stated that he was diagnosed with an
STD 11⁄2 years ago. Susan also explained that the current cut
on Tom’s lip was caused by a pipe when Tom was working
with a cow.
After Tom had been declared dead, Ground asked Susan if
she was willing to go to the police headquarters for an inter-
view. Susan agreed.
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Cite as 287 Neb. 864Interrogation of Susan at
Police Headquarters
After arriving at the police headquarters at approximately
1 a.m., Ground placed Susan in an interview room. Ground
left the room, and Susan began working on her written state-
ment. Susan was left alone in the interview room from 1:12 to
3:04 a.m.
At approximately 3:04 a.m., Ground reentered the interview
room. At 3:08 a.m., Ground read Susan her Miranda rights and
Susan told Ground that she understood her rights. Susan pro-
ceeded to sign the Miranda waiver.
Ground began the interrogation by asking general questions
about Tom’s injuries and his whereabouts for the week. Susan
repeated the facts as she had stated at Bryan hospital.
Susan stated Tom went to Seward, Nebraska, on Monday,
March 7, 2011, for a job application and from there he went
directly to South Dakota. Susan told Ground that she had
talked to him on her cell phone on Monday, March 7, for
approximately 44 minutes. According to Susan, Tom indicated
that he wanted to be with “that thing.” On March 8, Susan
and Tom talked for 5 minutes, and Susan told Ground that she
likely screamed at him because she was not happy.
At approximately 3:22 a.m., Susan told Ground that she was
exhausted. But she continued to talk. Susan explained that the
next time she heard from Tom was on Friday morning. She
again repeated the same story of what had occurred that day.
At approximately 3:34 a.m., Susan stated that she needed some
sleep because she was exhausted.
The questioning continued, and Susan stated that she had
confronted Tom when he came home on Friday morning
because she was angry. Susan told Ground that she cannot say
for sure that Tom drove home and that she does not know how
he could have driven in his condition.
At approximately 3:41 a.m., Investigator Robert Farber
entered the room and silently sat at the table. At 3:42 a.m.,
Susan began crying, and at 3:43 a.m., she stated, “I’m
tired. I wanna go to bed, please. I’m done, I wanna go to
sleep. I’m tired.” Farber immediately interrupted her and
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introduced himself. Farber then told Susan that he had “a
couple questions.”
Farber began questioning. He asked Susan when Tom and
she were married and whether they have common children.
Farber questioned Susan about her relationship with Tom and
about Tom’s alleged relationship with his mistress. The ques-
tions became more directed and intense as Farber continued
the interrogation.
In response to the questioning, Susan stated that everybody
called Tom a “wheeney” and that he took the beatings from his
alleged mistress. Susan also stated that Tom had slapped her
in Minnesota. Susan explained that she was arrested for that
incident because she decided to not tell the police that Tom had
slapped her.
At approximately 4 a.m., Susan again stated, “I’m getting
tired, I’m done, I’m tired.” Farber interjected again before
Susan completed the statement. Farber asked Susan if she had
anything do with the injuries. Susan answered no; Farber con-
tinued to ask questions, and Susan continued to answer. For
the next 18 minutes, the questions from Farber became more
pointed and directed.
At 4:18 a.m., Susan exclaimed, “I want a lawyer, please.
I’m tired of this.” “I will talk [to] them and they, I want some
sleep, please.” “I didn’t, I will, I just wanted to live and I
loved him so much, and I just wanted to live and he wanted a
divorce, and I just wanted to live with him. . . . I loved him.”
Farber said “okay” and left the room almost immediately.
Ground followed.
Susan laid her head down at the table for approximately 30
seconds, stood, and grabbed her keys to leave. Susan opened
the door to the interview room and asked to have a cigarette.
Ground told her to take a seat. Susan turned around and
mumbled, “So sorry. I’m sorry.” Ground apparently paused
to hear what Susan said and then reentered. Ground silently
took a seat at the table in the same spot she sat during the
entire interrogation.
Susan talked uninterrupted for nearly 8 minutes with a slow
delivery, while Ground sat and listened. Susan stated:
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Cite as 287 Neb. 864So sorry. I’m sorry. (inaudible) beat by that whore. He
used to come home, bruises, bloody nose, black eyes.
He’s got scars on his back that are not from me. He’s got
marks on him that are not from me. He’d come home
and, well, he’d tell his boss (inaudible) on the trip. He’d
tell me he did it on the truck going to (inaudible). Then
he’d turn around, go to Sioux Falls and that Gloria. Oren
called me today and asked if I’d seen your face. It’s all
bruised up. I told him that fuckin’ cunt you’re married
to did it. (inaudible) I didn’t ever touch him. Didn’t
ever touch him. When I slapped him in Fairbury, not
Fairbury, in (inaudible), what the name of that town?
I can’t think of it, Burger King, God. The car pulls in
there, parked, to get a burger but on the way in is when
he finally admitted he’d been sleeping with that thing.
Finally admitted it. He got our money, went into Burger
King. I got out of the truck and proceeded to walk across
the highway to the other little truck stop across the road
and he followed me over there. Came up to me, grabbed
one of the dogs and I picked my leg up. Leave it alone.
And then I proceeded, I walked, was walking, trying
to call my son to come get me but he wouldn’t answer
his stupid phone. Standing there at the back, I’m like
I’m going home. I’m going home. Well, fine, I’ll take
you home. I don’t know. I’m going home. That’s when
he shoved me into the wall and cracked me in the jaw.
And I slapped him. Some kid walked out of Burger
King. So I’m yowling so he called the cops. Next thing
I know they’re showing up. He said I’ll take you home,
I’ll take you home. Fine, I’ll take you home. Fine, I’ll
take you home. Then we got in the truck. Next thing I
know there’s the cops. Everybody thinks Tom is such an
innocent man. He used to be. He used to be the most lov-
ing, gentle, sweet man you could meet. Till he met that
(inaudible). Then they started molesting children. I still
say I think he was on drugs. Cuz you don’t drive 14, 16
hours with nothing. My Blazer for one hasn’t ever had a
problem with the brakes. I hit a deer. Well, come to find
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out my front brakes are disconnected. Huh. Excuse me. I
don’t know. I just know that (inaudible) no more getting
shoved. (inaudible) I didn’t poison him. He is what he is
from what he plays with. (inaudible) He told me he was
going to kill me. (inaudible) kill me. (inaudible) Am I
under arrest?
Ground told Susan that the decision for arrest was up
to the police department in Fairbury, Nebraska. Ground
answered some questions from Susan, but did not ask Susan
any questions.
Susan continued:
Self-defense, because I don’t bruise and he does. That’s
pretty much the way that goes. (inaudible) she did
(inaudible) to him. For what she did to him. He wasn’t
the man I married. What I told you about it is all true.
It does deal drugs, (inaudible) drugs, go psycho. And
it went psycho on him more than once. Does molest
children. Little boy’s name’s Chris. . . . I have to be
arraigned within 24 hours. I know that, why not. Just
like the deal in Minnesota. And he’ll walk away scott
free. And there’s a lot of the injuries he had [that were]
not from me. The worse one he get that I can remem-
ber is falling off the ladder. That one scared me. Why
didn’t I just leave. Why didn’t I just run. Because he
always showed up. He always showed up. (inaudible) I
need some sleep. (inaudible) so tired. I just, I just need
somebody to talk for me right now, I’m so tired. I’m too
tried. I haven’t (inaudible) for two days. Could you? I
want a cigarette.
Ground responded: “Okay, just be patient with us.” Susan
continued:
No, I want a cigarette. I want a cigarette. Then He did
take off and go back to S.D. (inaudible) either. It’s all
partly true. The whole story is partly true. I don’t know.
He came back beaten up from S.D. too. I didn’t hit him
in the head. (inaudible) when he fell on it. I stepped on it.
That was after he threw it at me is how it ended up there.
I’m not under arrest. I can go outside and have a cigarette
if I want.
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Cite as 287 Neb. 864After a back and forth conversation between Susan and
Ground, Susan stated, without being questioned:
(inaudible) you’ll arrest me because that’s the way it
always goes. Let’s (inaudible) her and she’s the one
that always gets in trouble. (inaudible) self defense, self
preservation. They made sure of it. It takes a heck of
a hit for me to bruise but . . . make sure that and Tom
knew it.
Shortly thereafter, an unidentified female officer entered the
room. Ground and the female officer took pictures of Susan’s
bruised hands and forearms. The interrogation video ends.
Susan was subsequently arrested and charged with first degree
murder and use of a deadly weapon to commit a felony.
Hearing on Motion to
Suppress Interrogation
On June 13, 2011, Susan filed a motion to suppress
her statements given on March 12, which she argued were
obtained in violation of her constitutional rights. Susan
argued that there were three different statements made by her
that invoked her constitutional right to end the interrogation.
At 3:43 a.m., Susan stated, “I’m done, I wanna go to sleep.
I’m tired.” At 4 a.m., Susan stated, “I’m getting tired, I’m
done, I’m tired.” And the last relevant statement was made at
4:18 a.m., when Susan stated, “I want a lawyer, please. I’m
tired of this.”
At the hearing, the district court accepted a joint stipulation
that Susan was in custody at the time of the interrogation.
In its order, the district court found Susan’s first two state-
ments were not unequivocal and unambiguous statements that
she wanted to cut off the questioning. Additionally, the court
found that all of the statements made by Susan after exercising
her right to counsel were voluntarily made and were not the
result of the functional equivalent of interrogation.
Susan filed a motion to reconsider. Upon reconsideration,
the district court suppressed the statements made from 4
to 4:18 a.m., because her statement that she was “done”
was unequivocal and unambiguous. However, statements
made before 4 a.m. were admissible, because Susan had not
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yet invoked her right to end questioning. The district court
found that statements made after 4:18 a.m. were admissible,
because they were not the result of questioning or the func-
tional equivalent.
Rule 404 Hearing
On January 26, 2012, the State filed an “Amended Motion
to Conduct Hearing Pursuant to Neb. Rev. Stat. § 27-104Regarding the Admissibility of § 27-404(2) Evidence.”1 A
hearing was held on the same date (rule 404 hearing), and evi-
dence was accepted. There are three prior “bad acts” that the
State wanted admitted for limited purposes.
For the first prior “bad act,” the State offered the testi-
mony of then-police officer Nicholas Schwalbe of Jackson,
Minnesota. Schwalbe testified that on May 31, 2010, he
received a call of a fight in progress at a truckstop. He identi-
fied the driver as Tom and the passenger as Susan. Schwalbe
observed that Tom had a black eye, a fresh wound under that
eye, and scabbing on his face, ear, and neck, as well as spots
of fresh blood rolling down his neck. Susan was placed under
arrest. Susan told Schwalbe that they were fighting because
Tom was cheating on her.
The second event occurred in August 2010. James Platt,
Susan’s son, and Sharon Platt, James’ wife, testified that Susan
and Tom unexpectedly came to live with them that August.
Susan told them that she and Tom needed to get away from
their home, which was in South Dakota at the time. Both James
and Sharon testified that Tom was “in bad shape.” Tom’s face
was beaten and swollen, and he had bloody ears. When asked,
Susan told James that the injuries were caused by a truckstop
robbery. James testified that Susan had for years believed
Tom was unfaithful with someone from work. Shortly there-
after, James testified that Susan and Tom moved to Jefferson
County, Nebraska.
The third event occurred in late 2010. James and Sharon
visited Susan and Tom at their new home in Jefferson County.
1
See Neb. Evid. R. 104 and 404(2), Neb. Rev. Stat. §§ 27-104 (Reissue
2008) and 27-404(2) (Cum. Supp. 2012).
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Cite as 287 Neb. 864Both testified that Tom looked “‘terrible.’” He had cuts on his
face and a split lip. Sharon asked Tom about his facial injuries,
and Susan replied for Tom that the injuries happened at work
when “the pigs got him.”
At the hearing, the State also offered the testimony of
McClure, Brian Bauer, and Ground. McClure testified about
Susan’s story that Tom had gone to South Dakota “probably up
visiting his girlfriend.” She testified about what Susan had told
her at the hospital.
Bauer, who had employed Tom on his farm in Jefferson
County, testified that Tom would come to work every 2 to 3
weeks visibly sore with bruises on his face, black eyes, split
lips, and marks on his hands. According to Bauer, these injuries
did not occur at work.
Ground testified that at the hospital, Susan stated that Tom’s
facial injuries and split lip were caused by working on the
farm. Susan told her that the split lip was caused by a pipe
when Tom was working with a cow.
Based on the evidence presented, the district court found
that the May 31, 2010, incident in Minnesota was admis-
sible as it pertains to the injuries observed on Tom and to
Susan’s statement as to the reason for their altercation, for
the specific and limited purposes of demonstrating the exis-
tence of motive and intent. The district court further ordered
that all three incidents were admissible for the specific and
limited purposes of negating, or demonstrating the existence
of, intent, identity of the perpetrator, and absence of mistake
or accident.
Trial
A jury trial was held on February 21, 2012. The State offered
the testimony of the 911 dispatcher, the responding emergency
personnel, the investigating officers, Farber, Ground, McClure,
Bauer, Schwalbe, and James and Sharon. The State offered
the video interrogation of Susan at the police headquarters,
with the footage from 4 to 4:18 a.m. redacted. The three prior
bad acts that were the subject of the rule 404 hearing were
also presented to the jury. In addition, the following evidence
was presented.
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Evidence Found at Home
The DeJong home was searched on March 12, 2011. Tom’s
Chevrolet Blazer was parked in the detached garage. No evi-
dence was found in the garage or either in or on the Blazer.
Susan’s white pickup truck was processed on March 15.
Tom’s blood was found on the hood and fender of the truck.
Inside the pickup truck, there was a red duffelbag and a blue
denim bag.
In the red bag, investigators found women’s clothing, a yel-
low hammer, a blue hammer, toiletry items, men’s pajamas,
and Tom’s wallet. The blue bag contained a computer, a lug
wrench, and a cell phone.
DNA tests were conducted on this evidence, and results
showed that the blue hammer had a mixture of Tom’s and
Susan’s DNA. Susan’s DNA was found on the handle of the
yellow hammer, and a mixture of DNA was found in a blood
sample on the claw area of the yellow hammer. Tom was the
major contributor of that DNA. Tom’s DNA was found in the
bloodstains on the men’s pajamas.
In the house, at least 70 blood drops were found throughout.
No large pools of blood were found. Blood was found in the
living room, kitchen, bathroom, dining room, and the mas-
ter bedroom. Blood was also found on clothing items seized
from the laundry room. A forensic scientist testified to which
stains were left by Tom, by Susan, or by a mixture of the two.
Tom’s DNA was found repeatedly in the bloodstains through-
out the house.
Medical Testimony
Dr. Craig Shumard was working in the emergency room when
Tom was brought by ambulance to the Jefferson Community
Health Center. Shumard described Tom’s injuries to the jury
and testified that the injuries did not arise from natural causes
or accidents. He testified that Tom’s injuries were inconsistent
with typical farmwork injuries.
Dr. Stanley Okosun, a trauma surgeon at Bryan hospital,
testified to his treatment and care of Tom. Okosun testified
that Tom’s high levels of myoglobin indicated that the trauma
inflicted on Tom occurred 12 to 24 hours prior to his arrival
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Cite as 287 Neb. 864at Bryan hospital. Okosun testified that Susan told him that
Tom’s bruising was caused by working on a pig farm. Okosun
testified that the explanation was highly unlikely. He fur-
ther testified that with the injuries suffered, Tom could not
have driven home on the Friday morning before his death.
According to Okosun, Tom’s injuries could not have been
caused by natural causes or a car accident. He attributed Tom’s
injuries to blunt force trauma caused by an assault.
Dr. Juris Purins was the radiologist who reviewed the CAT
scan performed on Tom at Bryan hospital. The CAT scan
revealed unusually severe head and brain injuries which are
typically associated with a patient’s not breathing. Tom’s nose
had a comminuted fracture, which means it was fractured in
multiple places. Tom had a dislocation of the lens in his right
eye, which was another unusual injury. Purins described a tre-
mendous number of fractures within the chest cavity, including
the spine, ribs, and scapula. One of the fractures was an old
injury but the rest were recent. Purins also identified a fracture
of the hyoid bone in the neck. Purins testified that the fractured
hyoid bone, along with subcutaneous emphysema, indicated a
potential choking injury. Purins opined that the injuries were
the result of a “pretty severe beating,” maybe from a hammer,
and that the injuries would have prevented Tom from driving
or walking.
Dr. Jean Thomsen was the pathologist who performed Tom’s
autopsy. Thomsen stated that she had “never seen someone
so extensively injured.” After the autopsy, Thomsen found
the cause of death to be “[b]lunt force trauma to the head,
neck, chest and extremities.” In her opinion, Tom’s death was
a homicide.
In her autopsy report, Thomsen found defects on Tom’s
hands and arms that she described as defensive wounds.
Thomsen found that the injuries were caused by some type of
instrument. Thomsen testified that the injuries were C-shaped
and semicircular and may have been caused by a hammer. The
autopsy also confirmed a fracture of the hyoid bone in the
neck, but she did not find other signs usually associated with
manual strangulation beyond neck bruising.
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Defense counsel offered the expert testimony of Dr. Robert
Bux, a forensic pathologist. Bux agrees that this case was a
homicide caused by multiple instances of blunt force trauma.
He stated that he has “never personally seen a case like this
with so much soft tissue contusion.” Tom was “really beaten.”
Bux opined that the injuries occurred at least 24 hours prior to
death, and maybe as many as 36 hours prior. He agrees that
the wounds on Tom’s hands and arms indicate that Tom was
attempting to ward off an attack.
Bux disagreed that a clawhammer was used, because there
were no circle bruises from the hammerhead, no raking marks
from the claw, and no pattern of contusions consistent with the
side of a hammer. He opined that based on a lack of hemor-
rhaging around the hyoid bone, the bone had been fractured
during the autopsy. He argued that the brain injuries were
caused not by the blunt force trauma but by Tom’s not breath-
ing while still at home. Bux also testified that Tom would have
been able to walk and talk immediately after the beating he
suffered, but that his condition would have continued to dete-
riorate. Bux also opined that because of the relatively small
amounts of blood found in the home, the assaults that caused
Tom’s facial injuries likely did not occur in the home.
Instant Messenger Chats
An investigator seized Susan’s computer and found relevant
Internet instant messenger chats. James, Susan’s son, confirmed
the messages were sent to him from Susan under her handle
“the_piglady.” On September 24, 2010, the “the_piglady” wrote
in reference to Tom, “i can’t do this . . . staying here anymore,”
“i’ve come to realize i literally hate him.” She continued, “now
i wish he was dead . . . i really hate him more than i have
ever hated ANYONE.” On February 14, “the_piglady” wrote
that “i’m looking at getting rid of tom” and “i can’t take or do
this anymore.”
Tom’s Whereabouts
Week of His Death
Beyond testifying about Tom’s injuries while working at
the farm, Bauer testified that on the Tuesday before his death,
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Cite as 287 Neb. 864Tom worked a full day. Tom was bruised and had trouble get-
ting around. On Wednesday and Thursday, Tom called in sick.
On Thursday, Bauer drove by the house and noticed that both
vehicles owned by the DeJongs were at the house, including
Tom’s Blazer.
James testified that he had a telephone conversation with
Susan on the Thursday morning before Tom’s death. James
asked Susan what size tires were on Susan’s white pickup
truck. James testified that Susan asked someone else in the
house. James assumed that the person was Tom and was
surprised that Tom was not working. James testified that
Susan did not mention in that telephone call that Tom was in
South Dakota.
Cell phone records were also introduced into evidence. On
March 8, 2011, the Tuesday before Tom’s death, there were
four calls from Susan’s cell phone to Tom’s cell phone and
the calls “hit” or “pinged” off the nearby cell towers in the
Fairbury and Hebron, Nebraska, areas. On Wednesday and
Thursday, there were calls from Tom’s cell phone to Bauer’s
cell phone. Both calls “hit” off cell towers in the Fairbury and
Hebron areas.
Alleged Mistress
The woman who Susan alleged was Tom’s mistress also
testified at trial. The woman worked as a dispatcher for a
small trucking company in South Dakota. Tom had been a
truckdriver for that company. The woman testified that she
and Tom had a working relationship only. She never spent
time with Tom socially. She never had any type of sexual
contact with Tom. She testified that she had no reason to
want to hurt Tom or Susan. The woman testified that from
March 8 to 11, 2011, she was on a trip to Minnesota and had
no contact with Tom. She testified that she did not inflict
Tom’s injuries.
Convictions and Sentences
After deliberation, the jury found Susan guilty on count I,
murder in the first degree, and guilty on count II, use of a
deadly weapon to commit a felony. Susan was sentenced to
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life imprisonment for count I and 50 to 50 years’ imprisonment
on count II, to be served consecutively. Susan now appeals.
ASSIGNMENTS OF ERROR
Susan assigns, restated and summarized, that the district
court erred by (1) admitting at trial the statements she made to
investigators between 3:43 to 4 a.m.; (2) admitting at trial the
statements she made to investigators after 4:18 a.m.; (3) admit-
ting at trial evidence of Tom’s injuries on prior occasions and
her related statements concerning the injuries, because there
was no clear and convincing evidence that she had committed
a crime, wrong, or act with respect to those injuries; and (4)
admitting at trial evidence of Tom’s injuries on prior occasions
and her related statements concerning the injuries, because the
probative value of the evidence was substantially outweighed
by the danger of unfair prejudice.
STANDARD OF REVIEW
[1] In reviewing a motion to suppress a statement based
on its claimed involuntariness, including claims that law
enforcement procured it by violating the safeguards estab-
lished by the U.S. Supreme Court in Miranda v. Arizona,2
we apply a two-part standard of review. Regarding histori-
cal facts, we review the trial court’s findings for clear error.
Whether those facts meet constitutional standards, however, is
a question of law, which we review independently of the trial
court’s determination.3
[2-4] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the
Nebraska Evidence Rules; judicial discretion is involved only
when the rules make discretion a factor in determining admis-
sibility.4 Determining the relevancy of evidence is a matter
entrusted to the discretion of the trial court.5 Likewise, it is
2
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694(1966).
3
State v. Bauldwin, 283 Neb. 678, 811 N.W.2d 267 (2012).
4
State v. Ely, ante p. 147, 841 N.W.2d 216 (2014).
5
Id.Nebraska Advance Sheets
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Cite as 287 Neb. 864within the discretion of the trial court to determine relevancy
and admissibility of evidence of other wrongs or acts under
Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue 2008),
and rule 404(2), and the trial court’s decision will not be
reversed on appeal absent an abuse of discretion.6
ANALYSIS
Interrogation
Susan argues that the district court erred in not suppressing
her statements made from 3:43 to 4 a.m. and her statements
made after 4:18 a.m. She argues that the statements were
obtained in violation of her Miranda rights.
[5,6] The Miranda Court adopted a set of prophylactic
measures to protect suspects from modern custodial interroga-
tion techniques.7 The safeguards come into play whenever a
person in custody is subjected to either express questioning or
its functional equivalent.8 The safeguards include the familiar
Miranda advisements of the right to remain silent and the right
to have an attorney present at questioning.9 If the suspect indi-
cates that he or she wishes to remain silent or that he or she
wants an attorney, the interrogation must cease.10
[7] In Edwards v. Arizona,11 the U.S. Supreme Court held
that not only must the interrogation cease when a suspect
invokes his or her right to counsel but also that the suspect
“is not subject to further interrogation by the authorities until
counsel has been made available to him, unless the accused
himself initiates further communication, exchanges, or con-
versations with the police.” This second layer of protections
ensures that police will not take advantage of the coercive
pressures inherent in custodial interrogation by repeatedly
6
Id.7
See Miranda v. Arizona, supra note 2.
8
State v. Bormann, 279 Neb. 320, 777 N.W.2d 829 (2010).
9
See Miranda v. Arizona, supra note 2.
10
Id.11
Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 68 L. Ed. 2d
378 (1981).
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questioning a suspect, who has requested counsel, until the
suspect submits to questioning.12 It ensures that the suspect
was not pressured by the police to change his mind on his
invocation for counsel.13
Edwards is inapplicable if the suspect initiated the post-
invocation discussion with the authorities.14 As the Edwards
Court explained:
[W]e do not hold or imply that [the suspect] was pow-
erless to countermand his election or that the authori-
ties could in no event use any incriminating statements
made by [him] prior to his having access to counsel.
Had [the suspect] initiated the meeting . . . nothing in
the Fifth and Fourteenth Amendments would prohibit the
police from merely listening to his voluntary, volunteered
statements and using them against him at the trial. The
Fifth Amendment right identified in Miranda is the right
to have counsel present at any custodial interrogation.
Absent such interrogation, there would have been no
infringement of the right that [the suspect] invoked and
there would be no occasion to determine whether there
had been a valid waiver. Rhode Island v. Innis,[15] makes
this sufficiently clear.16
[8,9] The Edwards rationale recognizes the value of vol-
untary statements. “Voluntary confessions are not merely ‘a
proper element in law enforcement,’ . . . they are an ‘unmiti-
gated good,’ . . . ‘“essential to society’s compelling interest
in finding, convicting, and punishing those who violate the
law.”’. . .”17 Thus, “[v]olunteered statements of any kind are
12
See Maryland v. Shatzer, 559 U.S. 98, 130 S. Ct. 1213, 175 L. Ed. 2d
1045 (2010).
13
Dorsey v. U.S., 60 A.3d 1171 (D.C. 2013).
14
See, e.g., Minnick v. Mississippi, 498 U.S. 146, 111 S. Ct. 486, 112 L. Ed.
2d 489 (1990); Arizona v. Roberson, 486 U.S. 675, 108 S. Ct. 2093, 100
L. Ed. 2d 704 (1988); Edwards v. Arizona, supra note 11.
15
Rhode Island v. Innis, 446 U.S. 291, 100 S. Ct. 1682, 64 L. Ed. 2d 297(1980).
16
Edwards v. Arizona, supra note 11, 451 U.S. at 485-86.
17
Maryland v. Shatzer, supra note 12, 559 U.S. at 108 (citations omitted).
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STATE v. De JONG 883
Cite as 287 Neb. 864not barred by the Fifth Amendment and their admissibility is
not affected by our holding [in Miranda].”18
Statements Made Between
3:43 to 4 a.m.
Susan argues that her statements from 3:43 to 4 a.m. should
have been suppressed, because she unambiguously invoked her
right to cut off questioning. We agree with Susan that her state-
ments from 3:43 to 4 a.m. should have been suppressed, but
conclude that the district court’s error was harmless.
As mentioned, the safeguards of Miranda “‘assure that
the individual’s right to choose between speech and silence
remains unfettered throughout the interrogation process.’”19
The suspect has the right to “control the time at which ques-
tioning occurs, the subjects discussed, and the duration of
the interrogation.”20
[10,11] In considering whether a suspect has clearly
invoked the right to remain silent, we review not only the
words of the criminal defendant, but also the context of
the invocation.21 Relevant circumstances include the words
spoken by the defendant and the interrogating officer, the
officer’s response to the suspect’s words, the speech patterns
of the suspect, the content of the interrogation, the demeanor
and tone of the interrogating officer, the suspect’s behavior
during questioning, the point at which the suspect allegedly
invoked the right to remain silent, and who was present dur-
ing the interrogation.22 A court might also consider the ques-
tions that drew the statement, as well as the officer’s response
to the statement.23
18
Miranda v. Arizona, supra note 2, 384 U.S. at 478.
19
Connecticut v. Barrett, 479 U.S. 523, 528, 107 S. Ct. 828, 93 L. Ed.
2d 920 (1987) (emphasis omitted) (quoting Miranda v. Arizona, supra
note 2).
20
Michigan v. Mosley, 423 U.S. 96, 103-04, 96 S. Ct. 321, 46 L. Ed. 2d 313(1975).
21
State v. Rogers, 277 Neb. 37, 760 N.W.2d 35 (2009).
22
Id.23
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884 287 NEBRASKA REPORTS
We find that a reasonable officer presented with the cir-
cumstances of this interrogation would have understood
Susan’s statements at 3:43 a.m. that she was done, tired, and
wanted to go to sleep as an invocation of her right to remain
silent. We have held very similar statements, such as “‘I’m
done,’” to be unambiguous invocations.24 Not only should
a reasonable officer have understood Susan’s statement to
be an invocation of the right to remain silent, it appears that
Farber understood the statement this way. After the invoca-
tion, Farber interrupted Susan and began to ask questions
for his coroner’s report. Farber’s actions indicate an under-
standing that Susan was done talking about the investigation.
But, after changing the topic of conversation briefly, Farber
continued the interrogation. Miranda prohibits officers from
simply persisting after a suspect invokes his or her right to
remain silent.25
[12] Therefore, the district court’s failure to suppress Susan’s
statements from 3:43 to 4 a.m. was a constitutional error.26
But even constitutional error does not automatically require
reversal of a conviction if that error was a trial error and not
a structural defect.27 The admission of an improperly obtained
statement is a trial error, and so its erroneous admission is sub-
ject to harmless error analysis.28
[13,14] To conduct harmless error review, we look to the
entire record and view the erroneously admitted evidence rela-
tive to the rest of the untainted, relevant evidence of guilt.29
Our review looks to the basis on which the trier of fact actu-
ally rested its verdict; the inquiry is not whether in a trial that
occurred without the error a guilty verdict would surely have
been rendered, but, rather, whether the actual guilty verdict
24
Id. at 69, 760 N.W.2d at 61.
25
State v. Rogers, supra note 21.
26
See State v. Bauldwin, supra note 3.
27
See, Arizona v. Fulminante, 499 U.S. 279, 111 S. Ct. 1246, 113 L. Ed. 2d
302 (1991); State v. Bauldwin, supra note 3.
28
Id.
29
See State v. Freemont, 284 Neb. 179, 817 N.W.2d 277 (2012).
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Cite as 287 Neb. 864rendered in the questioned trial was surely unattributable to
the error.30
We begin by finding that the untainted, relevant evidence
strongly supports Susan’s guilt. Overwhelming evidence of
guilt alone is not sufficient to find harmless error, but it is rel-
evant in determining whether the actual guilty verdict rendered
in the questioned trial was surely unattributable to the error.31
The State’s evidence demonstrated that Susan’s story that Tom
was beaten by his alleged mistress was completely fabricated.
The evidence presented at trial showed that Tom was home that
week and never left for South Dakota.
Bauer, Tom’s boss, testified that Susan’s and Tom’s vehi-
cles were at the DeJong home the day before Tom allegedly
returned from South Dakota. Bauer testified that Tom had
called in sick to work on that Wednesday and Thursday. Cell
phone records confirm that those calls “pinged” off cell towers
near the DeJong home and not in South Dakota. Susan’s son,
James, testified that he believed Tom was at the DeJong home
on Thursday because of a telephone conversation he had with
Susan that day. At trial, Susan presented no evidence that Tom
had actually gone to South Dakota. Additionally, the alleged
mistress testified that she and Tom never had an extramarital
relationship, that Tom did not visit her that week, and that she
did not cause his injuries.
Other evidence demonstrates Susan’s motive for killing Tom.
During her hospital interview, Susan ranted about Tom and his
“whore.” Susan alleged that Tom and that “whore” used drugs
and molested children. Susan blamed the “whore” for ruining
her relationship with Tom. Additionally, the State introduced
Susan’s Internet instant messages in which Susan stated that
she “hate[d]” Tom, that she wished he were dead, and that she
was “looking at getting rid of” him.
The evidence at trial also showed that Susan may have been
the only person with the opportunity to inflict Tom’s injuries.
The medical testimony offered at trial established that many
of Tom’s injuries were inflicted well within 72 hours of his
30
State v. Bauldwin, supra note 3.
31
Id.
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death. That indicates that Tom’s injuries may have occurred
any time after Tuesday. The evidence indicates that during
those periods of time, Tom was at home with Susan. There
was no evidence presented, other than Susan’s fabricated
statements about South Dakota, that Tom left the home on
Wednesday, Thursday, or Friday. There was no evidence pre-
sented that someone other than Susan had spent time with Tom
after Tuesday.
The physical evidence also supported Susan’s guilt. All of
the medical experts testified that Tom was severely assaulted
and that his injuries were not caused naturally or by acci-
dent. His death was caused by blunt force trauma. Tom
had defensive wounds on his hands and arms. Droplets of
blood were found throughout the house, including on Susan’s
clothes. A red bag containing women’s clothes, men’s paja-
mas, Tom’s wallet, and two hammers and a blue bag contain-
ing a computer, a lug wrench, and a cell phone were found
in Susan’s truck. Thomsen, the pathologist who performed
Tom’s autopsy, testified that the injuries to Tom’s body were
caused by some type of instrument and that the instrument
could have been a hammer. After the interrogation, photo-
graphs and testimony established that Susan had bruises and
sores on her palms that would be consistent with swinging a
hammer. The bloodstained blue hammer recovered in Susan’s
truck had a mixture of Tom’s and Susan’s DNA. Susan’s DNA
was found on the handle. Tom’s DNA was found on the head
of the hammer.
[15] Again, overwhelming evidence of guilt alone does not
establish harmless error.32 However, the erroneous admission of
evidence is harmless error and does not require reversal if the
evidence is cumulative and other relevant evidence, properly
admitted, supports the finding by the trier of fact.33
After reviewing the interrogation, we find that the statements
made by Susan from 3:43 to 4 a.m. are almost entirely cumu-
lative to her properly admitted statements made to Ground at
Bryan hospital just 5 hours prior to being interrogated. Susan
32
Id.
33
State v. Ildefonso, 262 Neb. 672, 634 N.W.2d 252 (2001).
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Cite as 287 Neb. 864concedes this with one exception. Susan notes in her brief
that during this period of interrogation, she admitted that she
had lied to the police in Minnesota. Susan stated that she was
arrested in Minnesota because she told the Minnesota police
officer that Tom had not slapped her, when in fact he had.
We first emphasize that this statement was not a confession.
It was to some degree incriminating, because the jury was
informed that Susan was arrested for an unknown offense. But
the jury would not know from her interrogation statement why
she was arrested and under what circumstances. The statement
alone did not inform the jury that Susan had slapped Tom.
Additionally, any inference that Susan was arrested for
assaulting Tom in Minnesota is cumulative to properly admit-
ted evidence. In her statements made after 4:18 a.m., Susan
mentioned the incident in Minnesota and told Ground that “I
slapped him in Fairbury.” Although her interrogation statement
after 4:18 a.m. is not crystal clear as to exactly what happened
in Minnesota, it does strongly mitigate the prejudice caused by
the improper admission of her statements.
Further, the jury could infer from the relevant, untainted
evidence that Susan had on different occasions assaulted Tom
prior to the assault that resulted in his death. Susan, in her
hospital statements, told McClure and Ground that Tom had
been previously beaten by the “whore.” This is consistent
with Bauer’s testimony, which was not objected to at trial or
on appeal, that Tom would come to work every 2 to 3 weeks
visibly sore with facial injuries, including black eyes and split
lips. From this evidence, it is clear that Tom had been often
assaulted prior to his death. When this evidence is considered
with the evidence that Susan had lied about Tom’s whereabouts
before his murder, the alleged mistress’ testimony that she had
never harmed Tom, and Bauer’s testimony that Tom had not
suffered the injuries at work, a jury could reasonably infer that
Susan was the one who had previously assaulted Tom on mul-
tiple occasions.
Therefore, there is no reason to believe that Susan’s state-
ments from 3:43 to 4 a.m. materially influenced the jury’s
verdicts. Susan’s statements were cumulative and very minor
relative to the rest of the untainted record. The admission by
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the district court of Susan’s interrogation statements from 3:43
to 4 a.m. was harmless error.
Statements Made
After 4:18 a.m.
Susan argues that her statements made after 4:18 a.m.
should have been suppressed. Susan first argues that the state-
ments made after 4:18 a.m. were involuntary, because it was
a continuation of the ongoing interrogation. Second, Susan
argues that she continued to provide answers only because the
investigators had previously elicited inadmissible statements
from 3:43 to 4:18 a.m. and that therefore, “the cat was already
out of the bag.”34 We reject both of Susan’s arguments and
find that her statements after 4:18 a.m. were not required to
be suppressed.
First, we find that at 4:18 a.m., Susan clearly invoked her
right to end the questioning under her right to counsel when
she stated, “I want a lawyer, please. I’m tired of this.” The
State concedes that this was a proper invocation for her right
to an attorney.
The question to be answered is whether Susan voluntarily
initiated the conversation after her 4:18 a.m. invocation. We
find that she did. After Susan’s invocation, both Farber and
Ground ended the interrogation and left the room. Susan laid
her head down for 30 seconds, then stood and grabbed her
keys. She opened the door to the interrogation room to leave
for a cigarette. Susan could not leave because she was in cus-
tody. Ground told Susan to sit back down, and Ground went to
close the interrogation room’s door. Without a question being
asked, Susan began talking. Ground paused as she closed the
door, reopened the door, and took a seat in a chair across from
Susan. None of the actions of Ground can be construed as ini-
tiating the conversation. She simply told Susan to take a seat
and then proceeded to leave. Only after Susan said “I’m sorry”
to Ground, did Ground reenter the room.
Because Susan clearly initiated the conversation after her
invocation for counsel, the second layer of protection outlined
34
Brief for appellant at 62.
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Cite as 287 Neb. 864in Edwards is inapplicable. The police were “merely listening
to [Susan’s] voluntary, volunteered statements and using them
against [her] at the trial.”35
Additionally, the record establishes that at no time after
Susan initiated the conversation did another interrogation
begin. Interrogation includes not only express questioning, but
also any words or actions that the police should have known
were reasonably likely to elicit an incriminating response.36
After 4:18 a.m., Ground did not ask Susan a question and
Ground did not employ any form of modern interroga-
tion techniques.
In interpreting Rhode Island v. Innis,37 this court has stated
that an objective standard is applied to determine whether there
is interrogation within the meaning of Miranda and Edwards.38
The question to be answered is: “‘Would a reasonable and
disinterested person conclude that police conduct, directed
to a suspect or defendant in custody, would likely elicit an
incriminating response from that suspect or defendant? . . . If
the answer is “yes,” there is interrogation . . . .’”39
From the interrogation video and transcript, we find the
answer to be no. Susan’s statements made after 4:18 a.m.
were not made during an interrogation. Ground’s actions did
not elicit the incriminating responses. She did not threaten or
persuade Susan into talking. Ground simply sat down at the
interrogation table after Susan began speaking. “‘[I]nterroga-
tion occurs when a person is placed under a compulsion to
speak.’”40 Susan was not compelled to talk by Ground’s actions
or statements; Susan did so voluntarily. There was no interro-
gation after 4:18 a.m.
[16,17] Susan argues that she was compelled to talk because
“the cat was already out of the bag” due to her previous
35
See Edwards v. Arizona, supra note 11, 451 U.S. at 485.
36
Rhode Island v. Innis, supra note 15.
37
Id.38
State v. Bormann, supra note 8.
39
Id. at 327, 777 N.W.2d at 836.
40
Id. at 328, 777 N.W.2d at 836.
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inadmissible statements. We disagree. The U.S. Supreme Court
has stated that “after an accused has once let the cat out of
the bag by confessing, no matter what the inducement, he is
never thereafter free of the psychological and practical disad-
vantages of having confessed. He can never get the cat back
in the bag. The secret is out for good.”41 But the fact that the
defendant has shared a secret in an inadmissible statement
does not preclude the defendant from later waiving his or her
constitutional rights after the conditions that induced the origi-
nal statement have been removed.42 The U.S. Supreme Court
has explicitly rejected any “rigid rule” that suppresses the
subsequent statement and has instead directed courts to focus
on the voluntariness of any subsequent statement.43 To do so,
a court must evaluate the “entire course of police conduct”
and the surrounding circumstances, including whether or not
the conditions that made the first statement inadmissible had
been removed.44
In Missouri v. Seibert,45 the surrounding conditions made
the subsequent statement inadmissible. In that case, the police
purposefully did not give the suspect a warning of his rights
to silence or counsel until the inadmissible interrogation had
produced a confession.46 Subsequent to the confession, the
officer then gave the suspect his Miranda rights and then rein-
terrogated him until he confessed again. The U.S. Supreme
Court held that the subsequent confession repeated after the
Miranda warnings were given was inadmissible.47 The plural-
ity opinion reasoned that “[u]pon hearing warnings only in the
41
United States v. Bayer, 331 U.S. 532, 540, 67 S. Ct. 1394, 91 L. Ed. 1654(1947).
42
Oregon v. Elstad, 470 U.S. 298, 105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985);
United States v. Bayer, supra note 41.
43
Oregon v. Elstad, supra note 42, 470 U.S. at 318.
44
Id.45
Missouri v. Seibert, 542 U.S. 600, 124 S. Ct. 2601, 159 L. Ed. 2d 643(2004).
46
See id.47
See id.Nebraska Advance Sheets
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a suspect would hardly think he had a genuine right to remain
silent, let alone persist in so believing once the police began
to lead him over the same ground again.”48 The plurality sur-
mised that the suspect would be perplexed as to why his or her
rights were being discussed at that point.49 Further, telling the
suspect that what he or she says will be used against them cre-
ates an inference that the prior statements made by the suspect
will be used against them. Thus, the actions of the officer are
“likely to mislead and ‘depriv[e] a defendant of knowledge
essential to his ability to understand the nature of his rights
and the consequences of abandoning them.’”50 In such a sit­
uation, the unwarned and warned interrogations blended into
one “continuum.”51
[18] But in Justice Kennedy’s concurring opinion to Seibert,
he reiterated that subsequent statements can be admissible if
the “continuum” was broken by
[c]urative measures . . . designed to ensure that a reason-
able person in the suspect’s situation would understand
the import and effect of the Miranda warning and of
the Miranda waiver. For example, a substantial break in
time and circumstances between the prewarning statement
and the Miranda warning may suffice in most circum-
stances, as it allows the accused to distinguish the two
contexts and appreciate that the interrogation has taken a
new turn.52
And in Bobby v. Dixon,53 the Court accordingly held that the
“continuum” between two of the interrogations had been broken
and that therefore, the subsequent confession was admissible.
Archie Dixon was arrested for forgery and was interrogated
48
Id., 542 U.S. at 613.
49
See id.50
Id., 542 U.S. at 613-14 (quoting Moran v. Burbine, 475 U.S. 412, 106 S.
Ct. 1135, 89 L. Ed. 2d 410 (1986)).
51
Id., 542 U.S. at 617.
52
Id., 542 U.S. at 622 (Kennedy, J., concurring).
53
Bobby v. Dixon, ___ U.S. ___, 132 S. Ct. 26, 181 L. Ed. 2d 328 (2011).
Nebraska Advance Sheets
892 287 NEBRASKA REPORTS
without receiving Miranda warnings. During this unwarned
interrogation, Dixon readily admitted to obtaining an identifi-
cation card from a murder victim and forging checks with the
murder victim’s signature. Dixon was booked for forgery and
sent to a correctional facility.
Four hours later, Dixon was transported back to the police
station. Prior to any police questioning, Dixon told the
police, “‘I talked to my attorney, and I want to tell you what
happened.’”54 The police read Dixon his Miranda rights, and
Dixon signed a waiver. The interrogation began, and Dixon
admitted to the murder but attempted to pin the blame on
his accomplice.
The U.S. Supreme Court held that the admission of Dixon’s
murder confession was consistent with its precedent.55 The
Court noted that this was not the sort of two-step interroga-
tion procedure condemned in Seibert.56 It found that given all
the circumstances, Dixon had a real choice about giving an
admissible statement.57 Four hours had passed between Dixon’s
unwarned interrogation and the receipt of his Miranda rights,
he claimed to have spoken to his lawyer, and he had learned
that the police had additional physical evidence.58 As the Court
stated, “this significant break in time and dramatic change in
circumstances created ‘a new and distinct experience,’ ensuring
that Dixon’s prior, unwarned interrogation did not undermine
the effectiveness of the Miranda warnings he received before
confessing to [the victim’s] murder.”59
The U.S. Supreme Court reinstated the opinion of the Ohio
Supreme Court and noted that its holding did not excuse the
officer’s decision to not give Miranda warnings before the
first interrogation. But, the Court observed, the Ohio courts
had already properly recognized the officer’s failure and had
54
Id., 132 S. Ct. at 28.
55
See Bobby v. Dixon, supra note 53.
56
See, id.; Missouri v. Seibert, supra note 45.
57
See Bobby v. Dixon, supra note 53.
58
Id.59
Id., 132 S. Ct. at 32 (quoting Missouri v. Seibert, supra note 45).
Nebraska Advance Sheets
STATE v. De JONG 893
Cite as 287 Neb. 864remedied it by excluding Dixon’s forgery confession and the
attendant statements.
Here, we find that the circumstances in the interrogation
room had changed dramatically after Susan’s third invocation
and that the change gave Susan a real opportunity to make a
voluntary statement. In coming to our holding, we evaluated
the entire course of police conduct and the surrounding cir-
cumstances.60 This was not a two-step interrogation technique
as in Seibert. Susan was made fully aware of her rights before
any statements were made. However, the police did ignore
Susan’s first two invocations and Farber continued to question
Susan for an additional 35 minutes. During those 35 minutes,
the interrogation did become more intense and Susan did
make incriminating statements. Only when Susan requested an
attorney did the interrogation stop and Farber and Ground left
the room.
We have established that Farber had previously violated
Susan’s right to cut off questioning, and we do not excuse his
conduct. But such conduct resulted in the district court’s sup-
pressing Susan’s interrogation statements from 4 to 4:18 a.m.
Although the district court did not suppress Susan’s statements
from 3:43 a.m., we have found that the admission of those
statements was harmless. As in Dixon, the prior Miranda viola-
tions have been remedied.
The prior Miranda violations do not warrant suppression
of Susan’s statements made after 4:18 a.m. The circumstances
of the entire situation indicate that the effectiveness of the
Miranda warnings given to Susan was restored when Farber
and Ground ended the interrogation upon Susan’s request for
an attorney. The actions of the investigators reasonably dem-
onstrated to Susan that she had properly invoked her right to
an attorney and that the interrogation was over. Susan faced
“‘a new and distinct experience.’”61 After her two prior invo-
cations, the questioning did not even momentarily stop. In
both instances, the questioning continued and Susan, without
further verbal resistance, continued to answer. Contrary to
60
See Oregon v. Elstad, supra note 42.
61
See Bobby v. Dixon, supra note 53, 132 S. Ct. at 32.
Nebraska Advance Sheets
894 287 NEBRASKA REPORTS
those experiences, Susan faced a new experience after her
invocation for an attorney. She was no longer subject to mod-
ern interrogation techniques. The investigators stood and left
the room, indicating a clear intention to end the interrogation.
Susan was left alone.
And unlike in Elstad and Seibert, Susan initiated the second
conversation. She was never again subjected to questioning.
Susan made the decision to reinitiate the dialog with the inves-
tigators, and she was not explicitly attempting to clarify or
explain her previous inadmissible statements. Susan, for what-
ever reason, wanted to tell more of her story. As the Edwards
Court noted:
It is not unusual for a person in custody who previously
has expressed an unwillingness to talk or a desire to
have a lawyer, to change his mind and even welcome an
opportunity to talk. Nothing in the Constitution erects
obstacles that preclude police from ascertaining whether a
suspect has reconsidered his original decision. As Justice
White has observed, this Court consistently has “rejected
any paternalistic rule protecting a defendant from his
intelligent and voluntary decisions about his own crimi-
nal case.”62
Therefore, we affirm the district court’s determination that
Susan’s prior statements, which were made after she invoked
her right to end questioning, did not render inadmissible her
statements made after her interrogation ended. We find that
Susan’s statements after 4:18 a.m. were initiated by Susan
and were not the product of interrogation. Although the cat
may have been, in some limited respects, out of the bag, the
fact that the interrogation ended and the officers left the room
had significantly changed the circumstances of the interroga-
tion process and gave Susan a “real choice about giving an
admissible statement.”63 Susan’s statements after 4:18 a.m.
were voluntary.
62
Edwards v. Arizona, supra note 11, 451 U.S. at 490-91 (citing Michigan v.
Mosley, supra note 20 (White, J., concurring in result)).
63
Missouri v. Seibert, supra note 45, 542 U.S. at 612.
Nebraska Advance Sheets
STATE v. De JONG 895
Cite as 287 Neb. 864Evidence Admitted at
Rule 404 Hearing
Susan argues that the three prior bad acts admitted by the
district court should have been suppressed. For purposes of this
appeal, we are assuming, without deciding, that the admissions
were in error. However, we find the erroneous admissions of
the evidence to be harmless.
The State used the three prior bad acts to help link Susan
to the murder by demonstrating her prior assaults on Tom.
With all three prior bad acts, the testimony established that
Tom had injuries similar to the injuries which caused his
death and that the evidence implied the prior injuries were
caused by Susan. The first incident was the Minnesota police
officer’s testifying to facial injuries suffered by Tom and the
subsequent arrest of Susan. For the other incidents, the testi-
mony from James and Sharon described only the injuries they
witnessed on Tom and described Susan’s explanations for the
injuries. Neither James nor Sharon directly stated that Susan
caused the injuries. The district court admitted the Minnesota
event for the limited purposes of motive, intent, identity of
perpetrator, and absence of mistake. The other two incidents
were admitted for the limited purposes of intent, identity, and
absence of mistake.
We begin our harmless error analysis by again noting that the
untainted, relevant evidence strongly supports Susan’s guilt. As
already discussed, the evidence established that Susan had lied
about Tom’s going to South Dakota. The evidence established
that Tom was assaulted in the 72 hours prior to his death and
that during those 72 hours, Tom was at home with Susan. The
DNA found on the hammer was consistent with Susan’s swing-
ing the hammer and bludgeoning Tom with the hammerhead.
The medical experts agreed that Tom was murdered by blunt
force trauma. The only other suggested suspect, Tom’s alleged
mistress, testified that she did not see Tom that week and that
she did not harm Tom. This evidence, when considered with
the instant messages and interrogation statements about self-
defense, establishes Susan’s guilt.
But strong evidence of guilt alone is not enough. We also
find that for all three prior bad acts, there is cumulative
Nebraska Advance Sheets
896 287 NEBRASKA REPORTS
evidence establishing that Tom was often injured prior to his
death and that the likely perpetrator was Susan. In the properly
admitted statements after 4:18 a.m., Susan admitted that she
had slapped Tom in Minnesota. Susan also stated that Tom had
been previously beaten by the “whore.” Susan also told inves-
tigators that Tom bruised easily and that she did not, imply-
ing that she had previously assaulted him. Susan explained to
Ground that she was acting in self-defense, again indicating
that Susan had assaulted Tom. Bauer testified that Tom would
come to work visibly sore every 2 to 3 weeks with facial inju-
ries, including black eyes and split lips. When considered with
the evidence that Susan had lied about Tom’s whereabouts
to investigators and that she was angry at Tom for allegedly
cheating on her, a jury could infer that Susan may have also
been lying about Tom’s prior injuries being the result of work
or from beatings by the alleged mistress. From this evidence
alone, the jury could infer that Tom’s prior injuries were
inflicted by Susan.
Additionally, the untainted evidence not only provided evi-
dence of guilt but also established Susan’s motive, her intent,
her identity as the killer, and the absence of mistake in Tom’s
death. The evidence demonstrates that Susan was distraught
over her belief that Tom was cheating and that she had the
intent to kill him. The physical evidence also ties Susan
directly to the possible murder weapon and places her as the
only person with Tom the days before his death. The properly
admitted testimony from Bauer, the alleged mistress, and the
medical experts also establishes that Tom’s injuries were not
caused by mistake or accident. Bauer established that Tom was
often injured but that Tom was not injured at work. The alleged
mistress testified that she has never harmed Tom and had no
reason to do so. The medical experts testified that Tom’s inju-
ries were not caused by a car accident or caused by normal
activities at work. Even Susan’s expert pathologist testified that
Tom’s death was the result of an assault. The jury had ample
evidence that Tom’s death was not a mistake, that Susan was
the murderer, and that she had the motive and intent to commit
the crime.
Nebraska Advance Sheets
STATE v. De JONG 897
Cite as 287 Neb. 864When viewed in relation to the whole record, the evidence
erroneously admitted at the rule 404 hearing was insignifi-
cant. This evidence did not provide a crucial link to allow
the State to make its case. In that sense, the evidence admit-
ted at the rule 404 hearing was largely unnecessary. Thus, we
hold that the erroneously admitted evidence was insignificant
and did not materially influence the jury’s verdicts. Any error
was harmless.
CONCLUSION
The district court did not err in admitting Susan’s state-
ments made after 4:18 a.m. into evidence. Although the dis-
trict court erred by admitting Susan’s statements from 3:43 to
4 a.m. and, assuming without deciding, erred by admitting all
three prior bad acts, we find that all such errors were harmless.
The convictions and sentences are affirmed.
Affirmed.
Heavican, C.J., concurring.
I concur in the decision of the court affirming Susan’s
convictions and sentences. But I write separately because I
disagree with the majority’s conclusion that Susan’s state-
ments from 3:43 to 4 a.m. should have been suppressed. In
my view, Susan’s statements that she was done, tired, and
wanted to go to sleep did not unambiguously invoke her right
to remain silent.
In support of its conclusion that Susan’s statements should
have been suppressed, the majority cites to State v. Rogers.1
In Rogers, this court held that a defendant’s statement that she
was “‘done’” was sufficient to unambiguously invoke her right
to remain silent.2 But I dissented from this court’s decision in
Rogers, because I did not believe that the right to remain silent
had been unambiguously invoked. I continue to believe that
Rogers was wrongly decided and that the facts did not sup-
port a conclusion that the defendant had invoked her right to
remain silent.
1
State v. Rogers, 277 Neb. 37, 760 N.W.2d 35 (2009).
2
Id. at 69, 760 N.W.2d at 61.
Nebraska Advance Sheets
898 287 NEBRASKA REPORTS
In considering whether a suspect has clearly invoked the
right to remain silent, we review not only the words of the
criminal defendant, but also the context of the invocation.
Relevant circumstances include the words spoken by the
defendant and the interrogating officer, the officer’s response
to the suspect’s words, the speech patterns of the suspect,
the content of the interrogation, the demeanor and tone of
the interrogating officer, the suspect’s behavior during ques-
tioning, the point at which the suspect allegedly invoked
the right to remain silent, and who was present during the
interrogation. A court might also consider the questions
that drew the statement, as well as the officer’s response to
the statement.3
Of course, as this court noted in Rogers, a defendant’s
statement that he or she is “done,” taken together with the
surrounding circumstances, has been held by some courts to
unambiguously invoke that defendant’s right to remain silent.
But this court and other courts, presented with different cir-
cumstances, have found to the contrary.4 As this court noted in
State v. Schroeder,5 “[w]e have never held that any utterance
of ‘I’m done,’ no matter what the surrounding circumstances
or other statements, will be construed as cutting off all further
questioning.” Rather, the focus must be on those surround-
ing circumstances.
And in analyzing those circumstances in this case, I do not
agree with the majority that Susan invoked her right to remain
silent. Susan indicated that she was tired and done. She then
began crying. On these facts, a reasonable officer could have
assumed that she was frustrated, tired, and needed a break,
but that she was not yet done answering questions. Farber was
3
Id.4
See, State v. Thomas, 267 Neb. 339, 673 N.W.2d 897 (2004), abrogated,
Rogers, supra note 1; State v. Mata, 266 Neb. 668, 668 N.W.2d 448 (2003),
abrogated, Rogers, supra note 1. See, also, People v. Lowin, 36 A.D.3d
1153, 827 N.Y.S.2d 782 (2007); State v. Saeger, No. 2009AP2133-CR,
2010 WL 3155264 (Wis. App. Aug. 11, 2010) (unpublished disposition
listed in table at 329 Wis. 2d 711, 790 N.W.2d 543 (2010)).
5
State v. Schroeder, 279 Neb. 199, 218, 777 N.W.2d 793, 809 (2010).
Nebraska Advance Sheets
STATE v. PATTON 899
Cite as 287 Neb. 899permitted to clarify Susan’s wishes,6 which he did by asking
whether she had questions for him. And when he so inquired,
Susan indicated that she did, asking about the autopsy. Susan
then willingly answered questions posed by Farber in connec-
tion with the coroner’s report for the autopsy.
For the above reasons, I would conclude that Susan’s state-
ments from 3:43 to 4 a.m. did not need to be suppressed,
because Susan did not unambiguously invoke her right to
remain silent.
6
See Berghuis v. Thompkins, 560 U.S. 370, 130 S. Ct. 2250, 176 L. Ed. 2d
1098 (2010).
State of Nebraska, appellee, v.
Marqus J. Patton, appellant.
___ N.W.2d ___
Filed April 11, 2014. No. S-13-105.
1. Constitutional Law: Witnesses: Appeal and Error. An appellate court
reviews de novo a trial court’s determination of the protections afforded by the
Confrontation Clause of the Sixth Amendment to the U.S. Constitution and article
I, § 11, of the Nebraska Constitution and reviews the underlying factual determi-
nations for clear error.
2. Constitutional Law: Due Process. The determination of whether procedures
afforded an individual comport with constitutional requirements for procedural
due process presents a question of law.
3. Judgments: Appeal and Error. When issues on appeal present questions of law,
an appellate court has an obligation to reach an independent conclusion irrespec-
tive of the decision of the court below.
4. Rules of Evidence: Appeal and Error. The exercise of judicial discretion is
implicit in the determinations of relevancy under Neb. Evid. R. 403, Neb. Rev.
Stat. § 27-403 (Reissue 2008), and a trial court’s decisions regarding them will
not be reversed absent an abuse of discretion.
5. Rules of Evidence: Other Acts: Appeal and Error. It is within the discretion
of the trial court to determine relevancy and admissibility of evidence of other
wrongs or acts under Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Cum.
Supp. 2012), and the trial court’s decision will not be reversed absent an abuse
of discretion.
6. Criminal Law: Constitutional Law: Trial: Witnesses. The right of a person
accused of a crime to confront the witnesses against him or her is a fundamental